Complaint number LA/SI/163 concerning and alleged contravention of the Councillors' Code of Conduct by Councillor Thomas Stove of Shetland Islands Council.

• Introduction
• Outline of the Complaint and the Response
• The Investigation
• Consideration of the Evidence
• Findings and Conclusion

Introduction

1.1 Complaint number LA/SI/163 alleges a contravention of the Councillors' Code of Conduct ("the Code"). The Code was issued by the Scottish Ministers in terms of section 1 of the Ethical Standards in Public Life etc. (Scotland) Act 2000 ("the 2000 Act") and came into effect on 1 May 2003.

1.2 The complaint has been lodged by Mr Michael Swinburne ("the complainant") who alleges a contravention of the Code by Councillor Thomas Stove ("the respondent"). The respondent is an elected member of Shetland Islands Council ("the Council").

1.3 It is alleged that the respondent has contravened the Councillors' Code of Conduct, and, in particular, the provisions regarding declaration of interests and dealing with planning applications.

With regard to declaration of interests section 5 of the Code includes the following:

"5.1 The key principles of the Code, especially those which specify integrity, honesty, and openness are given further practical effect by the requirement for you to declare interests at meetings which you attend. The rules on declaration of interest, along with the rules which require registration of interests, are intended to produce transparency in regard to interests which might influence, or be thought to influence, your actions as a councillor.

5.2 It is your responsibility to make decisions about whether you have to declare an interest or make a judgement as to whether a declared interest prevents you from taking part in any discussion or voting. You are in the best position to assess your personal circumstances and to judge how these circumstances affect your role as a councillor in regard to a particular matter. You can, of course, seek advice from appropriate Council officers or from other sources which may be available to you. In making decisions for which you are personally responsible you are advised to err on the side of caution.

5.3 You may feel able to state truthfully that an interest would not influence your role as a councillor in discussion or decision-making. You must, however, keep in mind that the test is whether a member of the public, acting reasonably, would think that a particular interest could influence your role as a councillor.

5.13 The interests known to you, both financial and non-financial, of relatives and close friends may have to be declared. This Code does not attempt the task of defining "relative" or "friend". Not only is such a task one fraught with difficulty but is also unlikely that such definitions would reflect the intention of this part of the Code. The key principle is the need for transparency in regard to any interest which might (regardless of the precise description of relationship) be objectively regarded by a member of the public, acting reasonably, as potentially affecting your responsibilities as a councillor.

5.14 You must consider at the earliest stage possible whether you have an interest to declare in relation to any matter which is to be considered. You should consider whether agendas for meetings raise any issue of declaration of interest. Your declaration of interest must be made as soon as practicable at a meeting where that interest arises. If you do identify the need for a declaration of interest only when a particular matter is being discussed you must declare that interest as soon as you realise it is necessary.

5.16 Declaring a financial interest has the effect of prohibiting any participation in discussion and voting. You should leave the meeting room until discussion of the item of business is concluded.

5.17 A declaration of a non-financial interest involves a further exercise of judgement on your part. You must consider the relationship between the interest which has been declared and the particular matter to be considered and relevant individual circumstances surrounding the particular matter.

5.18 In the final analysis the conclusive test is whether, in the particular circumstances of the item of business, and knowing all the relevant facts, a member of the public acting reasonably would consider that you might be influenced by the interest in your role as a councillor and that it would therefore be wrong to take part in any discussion or decision-making. If you are not confident about the application of this objective yardstick, you should play no part in discussion and should leave the meeting room until discussion of the particular item is concluded. If you, in conscience, believe that your continued presence would not fall foul of this objective test, then declaring an interest will not preclude your involvement in discussion or voting."

With regard to the consideration of planning applications section 7 of the Code includes the following:

"7.2 As a councillor you may have to deal with planning applications. You may become involved in local cases as a ward representative, or you may be more actively involved in decision making as a member of a committee or at meetings of the Council which deal with planning applications. If so, it is your duty to ensure that development decisions are properly taken and that parties involved in the development process are dealt with fairly.

7.3 To reduce the risk of planning decisions being legally challenged, in your dealings with planning applications you must not only avoid impropriety, but must at all times avoid any occasion for suspicion and any appearance of improper conduct.

7.9 It is possible that you may receive representations from interested parties in relation to planning applications. If you are a member of the committee which deals with planning applications, or if you are to attend a meeting of the Council to consider planning applications, and you wish to respond to lobbying by constituents or others by openly advocating a particular course of action prior to the meeting, you must declare an interest and not take part in any consideration of the application in question and you must leave the meeting room until consideration of the matter is concluded.

7.10 If you propose to take part in the consideration of planning applications at a meeting of a committee or of the Council, you must not give grounds to doubt your impartiality. You must not make public statements about a pending application, to ensure that you are not seen to be prejudging a decision which will be made at the meeting where all the information required to take a decision will be available. You must not indicate or imply your support or opposition to a proposal, or declare your voting intention, before the meeting. Anyone who may be seeking to influence you must be advised that you will not formulate an opinion on a particular proposal until all available information is to hand and has been duly considered at the relevant meeting.

7.11 If you have an interest, whether financial, non-financial, or personal, in the outcome of a decision on a planning application, or a planning agreement, or on taking enforcement action, you must declare that interest and refrain from taking part in the consideration of the application."

1.4 The respondent has signed a declaration of acceptance of the office of councillor under the Local Authorities (Councillors) (Declaration of Acceptance of Office) (Scotland) Order 1990, as amended, in terms of which the respondent has undertaken to meet the requirements of the Councillors' Code of Conduct.

1.5 For the purpose of this investigation, I was assisted by Mr Jon Miller, Investigating Officer.

1.6 This report has been prepared for submission to the Standards Commission for Scotland in terms of section 14(2) of the 2000 Act. The report was submitted in draft form to the respondent for any representations. Details of the representations received and the extent to which the representations have been accepted or otherwise are set out in Annexes A and B respectively.

Outline of the Complaints and Response

The Complaint

2.1 The complainant alleges that the respondent failed to declare an interest and participated in the consideration of a planning application relating to land adjacent to a house occupied by the respondent's brother, and to which his brother had submitted a letter of objection.

The Response

2.2 The respondent states that his involvement in the planning application was prompted by local representation unconnected to his brother's objection, that he did not vote on the issue, and that following advice he withdrew from subsequent consideration of the application.

The Investigation

3.1 To establish the background to the complaint, the Investigating Officer sought and received information from the Council.

3.2 Having considered the documentary evidence, I proceeded, with the Investigating Officer, individually to interview the complainant, the respondent and relevant witnesses. The interviews took place on 21 June 2005.

Consideration of the Complaints and the Response

4.1 The respondent is an experienced councillor and former Convener of Shetland Islands Council. He is the elected member for Cunningsburgh and Sandwick. Planning matters are considered by the Planning Sub-Committee which comprises all the elected members.

4.2 On 20 November 2003 Mr Raymond Jamieson was granted outline planning permission for the erection of a house on agricultural land at Sandwick, Shetland. The plot selected has a contiguous boundary with the house known as Solbrekke which is occupied by Mr Andrew Stove and his wife, the respondent's brother and sister-in-law.

4.3 The respondent also resides in Sandwick but his house is situated at some distance from, and is not affected in any way by, the house built by Mr Jamieson.

4.4 On 20 October 2004 Mr Jamieson submitted a further application to construct a building which was described as a domestic garage. This was a substantial structure measuring 60 feet x 30 feet.

4.5 On receipt of the application the Council arranged for it to be advertised. Responsibility for neighbour notification lay with the applicant. Sandwick Community Council was made aware of the application and was unanimous in its opposition to the proposed development on grounds of size, visual amenity, road safety, and departure from the established building line.

4.6 The respondent became aware of the application when he received the weekly bulletin of applications from the Planning Department. He was aware that it related to a site which was adjacent to his brother Andrew's house, but received no representation from his brother in this connection. The respondent's contact with his brother, and his brother's family, has been limited in recent years due to a marital breakdown, and they do not currently have a close association.

4.7 The respondent was also telephoned and visited by Mrs Elizabeth Johnson whose house, while not directly bounding on the site, is separated from it by a small field. Mrs Johnson was opposed to the development.

4.8 Letters of objection were sent to the Council by Mr Andrew Stove, his sons Mr Gordon Stove, Mr Richard Stove, and Mr Anthony Stove, Mr David Johnson, Mrs Elizabeth Johnson, and Mr B H Gocke. These were appended to the papers sent to all elected members in advance of the meeting of the Planning Sub-Committee on 12 January 2005.

4.9 A report was prepared by the Head of Planning, Mr Alexander Hamilton which noted the size and placement of the proposed development which breached policies within the Shetland Structure Plan and Shetland Local Plan. Mr Hamilton recommended that the application be refused.

4.10 Prior to the meeting of the Planning Sub-Committee the respondent was lobbied by Mrs Johnson, a resident within his ward and also an objector to the proposed development, who sought his assistance in opposing the planning application. She telephoned and visited him in this respect. Mrs Johnson requested the respondent's assistance in circulating a letter to all elected members immediately prior to the meeting of the Planning Sub-Committee and the respondent copied and distributed the letter to his colleagues on the Sub-Committee. The letter composed by Mrs Johnson and dated 9 December 2005, reads as follows:

Dear Councillor,

Planning Application to erect garage (domestic use) by Mr R Jamieson

I wish to draw your attention to the fact that both applicant and neighbour are often most dissatisfied with the manner in which planning applications are dealt with by councillors on Planning Committee and ratification by full Council.

Each ward elects a councillor to represent them. The ward councillor is aware of the planning application, view of the Community Councillor and views of those recommending refusal when this occurs. The local councillor gives the lead. In the case of Mr R Jamieson's application for outline planning permission for site on Broch View croft, you did not take the lead from Councillor Stove, nor did you follow advice from Planning Officials, pay any heed to comments to those who are neighbours to the site and above all you disregarded the comments from Scottish Office official as to why he would not uphold Mr McDermot's appeal in 2003 for a site on part of Mr R Jamieson's site.These comments included the fact that -

This site was good 4.2 agricultural ground, and these comments clearly show that outline planning should never have been granted to Mr R Jamieson.

Instead you (where applicable) ridiculed Councillor Tom Stove, demonstrated your lack of caring for Shetland Wild Life and your lack of support for Shetland Tourism, and either lack of knowledge or lack of application of planning rules as they were cast to the wind.

As a councillor for another ward you should have no bias to either the applicant or those recommending refusal but

1) read and absorb thoroughly written material presented to you for the application under consideration

2) Listen carefully to the local councillor, in this [case] Tom Stove

3) Assimilate all the information and take the lead from Councillor Tom Stove when it comes to the vote and NOT follow your whim of the day which is rarely consistent from application to application and meeting to meeting or following Planning guidelines.

Yours sincerely
Beth Johnson (Mrs).

4.11 The respondent agreed to copy this letter and distributed it to his colleagues on the Planning Sub-Committee by placing it in their mail trays within the Council Chambers. He did not however endorse this letter or otherwise identify himself with its contents.

4.12 The application came before the meeting of the Planning Sub-Committee held at Lerwick on 12 January 2005. The meeting, chaired by Councillor Frank Robertson, was attended by 15 councillors, including the respondent.

4.13 Councillor Robertson introduced the agenda item and invited the planning officer, Mr McDiarmid, to summarise the issues. Immediately after the planning officer's input, the respondent stated that he was opposed to the application and moved its refusal. A verbatim minute was not taken but the respondent agrees that the transcript of the clerk's shorthand notes reflects his input accurately. He is recorded as saying:

" It is called a domestic garage but it is 60 x 50 [sic]. It is in a prominent area and there are already three garages for this house. I move refusal."

4.14 Contributions were then made by Councillors Knight, Irvine, Tait, Angus, and Grains, viz:

Councillor Knight: "Given the size of the house, I cannot see that a 60 x 30 garage is out of place. I have three garages and they would measure up to the same size. The objections seem to be centred on one family. I'm surprised at what's coming forward. Has there been a recommendation that it's moved back?"

Councillor Irvine: "I second Tom Stove. I'm not interested in the source of the objections. I'm interested in the recommendation from planning officials. I'm sure they're not recommending refusal because of the objections from one family."

Councillor Tait: "I feel there should be a site visit to look at this. A number of councillors are not here today. That's not a very good photo. If a site visit could be arranged so that councillors could see."

Councillor Angus: "I second Willie Tait."

Councillor Irvine: "I'm happy to leave it to a site visit."

Councillor Stove (the respondent): "I agree."

Councillor Grains: "It has to be advertised anyway."

4.15 The decision of the meeting was therefore to defer the decision until a site meeting had been held and the respondent effectively, withdrew his motion for refusal.

4.16 Following the meeting the respondent was contacted by telephone by Mr John Robertson, a reporter for The Shetland Times newspaper, who asked him to comment on the fact that he had failed to declare his close relationship to Mr Andrew Stove as an objector to the application. At this point the respondent realised that his actions could have been interpreted as a breach of the Code. He then contacted the Monitoring Officer, Mr Riise, who advised that the respondent should take no further part in the consideration of Mr Jamieson's application as this would potentially breach the Code and render the decision of the Planning Sub-Committee open to legal challenge.

4.17 On 14 January 2005 an article was published in The Shetland Times which drew attention to the respondent's failure to declare his interest as a relative of four objectors during the consideration of the planning application. It was this article that prompted the complaint to the Standards Commission by the complainant.

4.18 On 19 January 2005 Messrs Dowle Smith & Rutherford, solicitors to Mr Jamieson, wrote to the Council to intimate a possible complaint in regard to the same matter. This has not, to date, been taken any further by the Council.

4.19 On 23 February 2005 the matter was again considered by the Planning Sub-Committee. The respondent was present. On reaching the relevant agenda item the respondent stated without elaboration that he had a non-pecuniary interest and left the room. He took no part in the subsequent vote which resulted, on the Chairman's casting vote, in the refusal of the application as being contrary to the Structure Plan and Local Plan.

Findings and Conclusion

5.1 The complainant alleges that Councillor Thomas Stove contravened the Councillors' Code of Conduct, as outlined in paragraphs 1.3 and 2.1 of this Report.

5.2 The complaint alleges that the respondent failed to declare an interest and participated in the consideration of a planning application relating to land adjacent to a house occupied by the respondent's brother, and to which his brother had submitted a letter of objection. The details of the planning application and objections and how the application was dealt with by the Council are set out in section 4 of this Report.

5.3 The complainant has no personal interest in the outcome of the planning application which is at the centre of this complaint and is not acquainted with any of the parties concerned. He decided to lodge his complaint after reading the report which appeared in The Shetland Times following the initial consideration of the planning application in January 2005. In doing so he is motivated solely by public interest and at interview demonstrated a clear, reasonable and balanced view of the issues.
5.4 The complaint touches upon two distinct but related areas of the Code - the requirement to demonstrate transparency and fairness in the consideration of planning applications and the requirement to declare interests.

5.5 The Code provides that the financial and non-financial interests of relatives may have to be declared. In this case the impact of the planning application could potentially have had an adverse financial effect on the value of the neighbouring property owned by the respondent's brother. The point at issue however is whether the objections by the respondent's brother and three nephews could reasonably be viewed as having potentially influenced the respondent's action in moving for refusal of the application.

5.6 The respondent states that he had formed his own opinion as to the suitability of the application and opposed it on the basis of the report from the Head of Planning, the view of the Community Council, and the approach made to him by an unrelated objector, Mrs Johnson. He states that he had not been approached or contacted by his relatives and that it had not occurred to him that their objections could have been regarded as a declarable interest. Given that the house occupied by his brother was the property most immediately affected by the development, and that no fewer than four members of his family had objected to the application, I find the respondent's assertion that he had not appreciated the implication that might be drawn somewhat surprising.

5.7 On being alerted to the issue by the press and with the prospect of a critical report being published in The Shetland Times, the respondent then spoke to the Monitoring Officer. The advice given - as described in paragraph 4.16 above - was appropriate and acted upon by the respondent in that he did not attend the site visit, declared a non-pecuniary interest at the decision-making meeting on 23 February 2005, and withdrew from consideration of the application.

5.8 While the respondent's subsequent actions at the meeting on 23 February were appropriate, the Code requires councillors to consider at the earliest stage possible whether they have an interest to declare.

5.9 The respondent was entitled to take a view as the ward representative on the merits of the application and in this case he was clearly minded to have regard to proper planning considerations including the views of the Community Council, the objectors, and the Head of Planning in moving for refusal. However his family relationship to no fewer than four of the objectors, albeit they do not currently enjoy a close association, should have prompted him to realise an impression might be conveyed to the public that his decision had been influenced inappropriately. He should have recognized that a declarable interest arose and should have withdrawn from consideration of the matter altogether. It would certainly have been desirable for him to have sought advice on this point from the Monitoring Officer at an earlier stage.

5.10 In relation to the consideration of the planning application at the meeting of the Planning Sub-Committee on 12 January 2005, I have found (i) that the respondent had a close family relationship to 4 objectors (namely his brother and three nephews) to the application, (ii) that the objectors' interests were material in that his brother owned property close to and potentially adversely affected by the proposed development, (iii) that these interests were known to the respondent, (iv) that he should have declared an interest and withdrawn from the consideration of the application at that meeting as a reasonable member of the public would objectively regard these interests as potentially affecting the respondent's responsibilities as a councillor, and (v) that he did not declare an interest and participated in the consideration of the application at the meeting, including, at one stage, moving for refusal of the application.

5.11 In regard to the letter written by Mrs Johnson and distributed to his fellow councillors by the respondent I consider that the content can be interpreted as an adjuration to vote in accordance with the motion proposed by the local member. In this case of course it applied to the respondent who was moving for refusal of the application. While Mrs Johnson was entitled to write such a letter the active assistance given by the respondent in its duplication and distribution immediately prior to the meeting of the Planning Sub-Committee was ill-advised. At the very least it indicated to Mrs Johnson that the respondent was associating himself with a particular view put forward by an objector, and his actions in distributing the letter - albeit the terms of the letter were not endorsed by him - to other councillors could be seen as lobbying them to support his approach. In so doing the respondent compromised his own position.

5.12 Paragraphs 7.9 and 7.10 of the Code deal with the situation where a councillor wishes to advocate a particular course of action prior to the meeting at which the application as to be considered. In such a case the member must declare an interest and must not take any part in the consideration of the application. The terms of Mrs Johnson's letter do not specify the respondent's attitude towards the application and I do not consider that the respondent's actions in distributing her letter to his colleagues amounted to a public statement demonstrating his prejudgement of the issue. Accordingly I find that the respondent has not breached the terms of these paragraphs.

5.13 I note that when the application was determined by the Planning Sub-Committee on 23 February 2005 the respondent acted properly, declared his interest, and withdrew from the Council Chamber. In so doing he ensured that the decision of the Sub-Committee was not tainted and his conduct on that occasion was in accordance with the Code.

5.14 In relation to complaint number LA/SI/163, I have come to the conclusion that, having regard to the findings in section 5 and in particular paragraph 5.10 of this Report, Councillor Thomas Stove contravened the Councillors' Code of Conduct by failing to declare an interest and withdrawing from the meeting of the Planning Sub-Committee on 12 January 2005 contrary to paragraphs 5.13 and 7.11 of the Code.

D Stuart Allan
Chief Investigating Officer
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
KY11 2UU
26 August 2005